Canadian privacy & access decisions

An anonymous applicant complained that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) improperly withheld a 2000 land claim settlement agreement with the Squamish Nation. CIRNAC initially claimed exemptions under paragraphs 20(1)(b), 20(1)(c), and section 23 of the Access to Information Act, later adding paragraphs 18(b) and 20(1)(d) during the investigation. The Information Commissioner found that CIRNAC failed to demonstrate how any of the claimed exemptions applied to the records. Specifically, the institution did not establish a reasonable expectation of harm for the harms-based exemptions, nor did it meet all criteria for the class-based exemption. The Commissioner also rejected the argument that common law settlement privilege could be a stand-alone basis for refusal under the Act. Consequently, the complaint was found to be well-founded, and CIRNAC was ordered to disclose the records in their entirety. However, CIRNAC notified the Commissioner that it would not implement the order.

• Whether the information met the requirements of s.18(b) (competitive position or negotiations of a government institution)
• Whether the circumstances for exercising discretion under s.18(b) existed
• Whether the information met the requirements of s.20(1)(b) (confidential third-party financial, commercial, scientific or technical information)
• Whether the circumstances for exercising discretion under s.20(1)(b) existed
• Whether the information met the requirements of s.20(1)(c) (material financial impact on a third party or harm to its competitive position)
• Whether the circumstances for exercising discretion under s.20(1)(c) existed
• Whether the information met the requirements of s.20(1)(d) (interference with contractual or other negotiations of a third party)
• Whether the circumstances for exercising discretion under s.20(1)(d) existed
• Whether the information met the requirements of s.23 (solicitor-client or litigation privilege)
• Whether the circumstances for exercising discretion under s.23 existed
• Whether common law settlement privilege can be invoked as a stand-alone basis for refusing disclosure under the Access to Information Act
• Whether the public interest in access outweighed the public interest in preserving settlement privilege
• Whether CIRNAC fulfilled its severance obligations under s.25 of the Act